Jason Dzubow on Political Asylum

A recent op-ed in the Wall Street Journal ("Immigrants Need Better Protection--From Their Lawyers" by Professor Benjamin Edwards) laments the poor quality of immigration attorneys, and postulates that as a group, “the private immigration bar now contains the worst lawyers in all of law.”

It's easy to know which barber to choose (hint: Barber A), but finding a good immigration lawyer can be more challenging.

The author’s primary solution to the problem of “incompetent” and “predatory” lawyers is to track the success rate of each attorney and then make that information public. In this way, potential customers (i.e., people being deported) can make more informed decisions about their choice of counsel.

Among practicing lawyers, Prof. Edwards's solution was largely panned as unworkable, ivory-tower thinking. While I generally agree that there is a problem (which I’ve written about in a charmingly-titled piece called, Do Immigration Lawyers Suck?), I also agree with my colleagues that Prof. Edwards’s solution is unworkable (if you’re interested in why it is unworkable, here are some thoughts from Jennifer Minear at AILA).

While some immigration lawyers are less-than qualified for their jobs, it is none-the-less true that having a lawyer for an asylum case significantly increases the likelihood of a good outcome.

A new report from TRAC Immigration provides some specific data about asylum cases and representation. The report breaks down the statistics by country, which is quite helpful, as asylum seekers can look for their country, get a sense for how many of their landsmen are represented, and see the success rate for represented and unrepresented applicants. The report covers Immigration Court cases only (from FY 2012 to FY 2017), and does not include cases at the Asylum Office.

The bottom line is this: For almost all countries, asylum applicants with lawyers are two to four times more likely to win their cases in court, as compared to unrepresented applicants from the same country. There are, of course, some caveats.

One is that, people with good cases are more likely to have attorneys. This is because people with money, educated people, and people who speak English all have an advantage navigating the U.S. immigration system. Such people are more likely to find a lawyer, and they are also more able to present their cases. People who are detained, who are not educated, and who do not speak English will have a harder time presenting their cases, and will also be less able to obtain representation. In that sense, I think the statistics exaggerate the benefits of having an attorney.

But even considering these socio-economic factors, the difference between represented and unrepresented applicants is pretty significant, and in the face of these statistics, it’s hard to argue that lawyers don’t help, Prof. Edwards not-with-standing.

What’s also interesting here is that lawyers provide a multiplier effect on the likelihood of winning. So, for example, an unrepresented case from China has about a 21% chance of success, while a represented case has about an 82% chance of success—a difference of almost four times. And, of course, 82% is a lot better than 21%. A case from El Salvador, on the other hand, has only about a 4% chance of winning without a lawyer, but has almost a 17% chance for success with a lawyer—again, a difference of four times, but in absolute terms, the difference of 4% versus 17% is a lot less significant than 21% versus 82%. Put another way, when the average Chinese applicant hires an attorney for her asylum case, she appears to be getting a lot more for her money than the average Salvadoran applicant.

Why should this be? Why should a lawyer multiply the chances of winning rather than increase the likelihood of victory arithmetically by, say, 10 percentage points across the board (so that the Chinese applicant would go from a 21% chance of success to 31%, and the grant rate for Salvadorans would increase from 4% to 14%)?

The short answer is that I don’t know. Maybe one explanation is that asylum seekers from certain countries present claims that more easily fit within the legal parameters of our asylum system. So cases from China—which often involve political or religious persecution—are more amenable to a grant than cases from El Salvador, which often involve a fear of harm from criminals. Our asylum law quite clearly protects people fleeing religious or political persecution, but it offers little for people fleeing crime. Under this theory, lawyers representing Chinese applicants can help ensure that their cases are presented in a manner that meets the requirements for asylum. It is more difficult to do this for Salvadorans. Or put in more classic terms, even a great lawyer can’t make a silk purse from a sow’s ear.

Another interesting tidbit from the TRAC numbers is the level of representation in each community. Almost 96% of Chinese applicants had attorneys. Contrast that with Salvadorans, who were represented in only about 73% of cases. Looking at the top 10 source countries for asylum seekers, Haiti had the lowest rate of representation—only about 56% of Haitian asylum seekers had lawyers.

Finally, while it may be somewhat early to discuss trends since President Trump took the helm, the numbers for FY 2017 show an increase in the absolute number of asylum cases decided by Immigration Courts (from 22,312 in FY 2016 to 30,179 in FY 2017) and in the percentage of asylum cases denied (from 56.5% denied in FY 2016 to 61.8% denied in FY 2017). While these numbers are not encouraging, the upward trend in asylum denial rates actually began in FY 2012, under President Obama (denial rates have steadily risen from 44.5% in FY 2012 to 61.8% today).

So what are asylum seekers to make of all this? It seems to me that the most important take-away is that a lawyer in court can significantly increase the likelihood of success, as long as that lawyer is competent and makes an effort to help you with your case. I’ve written previously about the cost of a lawyer, and what the lawyer should do for you. I’ve also written about how to find a free lawyer if you cannot afford to hire one. If you are careful, if you ask questions, and if you make an effort to find an effective attorney, you can greatly increase the possibility of winning your asylum case in court.